Overtime Issues at SFU
Len (not his real name) came to see me recently about working overtime. Len’s supervisor had told him that, as their unit couldn’t afford to pay overtime due to SFU budget difficulties, could they come to another arrangement? Len, who is not a manager, was asked to work “extra hours” but was not compensated at Employment Standards Act (ESA) rates of 1.5 to 2 times his hourly rate, depending on the length of his day beyond the standard 7.2 hours. In short, Len would receive hour for hour compensation for each of his “extra hours”, which he could take as time in lieu. Len, who feared that he might be laid off if he didn’t comply, went along with the arrangement.
While I can’t disclose the personal guidance I gave to Len, I can let you know why such arrangements described above are inconsistent with the ESA and inconsistent with SFU’s own guidance to the SFU community on August 20, 2020.
From SFU’s guidance:
“To align with the Employment Standards Act and the Employment Standards Regulation, the University must compensate APSA employees who work hours in excess of APSA’s standard workday/week in the following ways. APSA employees who are:
- managers should continue to receive time in lieu for such hours; and
- non-managers should be paid at time-and-a-half for work over the APSA’s standard work day/week and double-time for work over twelve hours in a day or on holidays.”
So are APSA members like Len, who are non-managers, being compensated fairly in the scenario I characterized above?
No. As SFU itself notes, “…the University must compensate APSA employees who work hours in excess of APSA’s standard work day/week in the following ways…” and then notes in the second bullet point what is appropriate monetary compensation. An arrangement like that offered to Len is inconsistent with the ESA and inconsistent with SFU’s own guidance.
While SFU may have ongoing budget issues, it’s inappropriate to try to compensate APSA members at less than the ESA rates noted above.
About Time Banks
You may have heard of time banks, which are mandated under the ESA. An employee like Len can choose to bank their overtime pay as time in lieu, again per the overtime rates characterized in the second bullet point above. So, if Len worked an hour of overtime on, say, a Tuesday, he could choose to bank that overtime as 1.5 hours for later use.
What’s key is that time banks can’t be imposed upon employees like Len. Per the ESA on banking time, time banks can be requested by the employee who is earning overtime, which SFU’s own August 20, 2020, guidance reaffirms:
“An employee can request to bank their overtime hours instead of having them paid out. All requests must be submitted in writing.”
So, unless Len requests to bank their overtime, SFU representatives shouldn’t compel Len to bank their overtime. The ESA asserts that banking overtime as time in lieu is Len’s choice, not the University’s.
Section 42 of the ESA also notes that employees like Len can do one of the following with his time bank:
“(3) If a time bank is established, the employee may at any time request the employer to do one or more of the following:
“(a) pay the employee all or part of the overtime wages credited to the time bank;
“(b) allow the employee to use the credited overtime wages to take time off with pay at a time agreed by the employer and the employee;
“(c) close the time bank.”
If the time bank is closed, the University must pay Len the overtime wages credited to the time bank.
Help with Overtime Issues
If you’re at all confused about overtime issues or have a workplace concern that you’d like to talk to us about, please do reach out! Whether you’re a non-manager or manager, we’re here to help you. Conversations with us are always 100% confidential.
If you’re a manager and would like further SFU guidance on overtime issues, please contact your SFU strategic business partner directly.